“I am what I am, so take me as I am”
– Johann Wolfgang von Goethe
On 6th September 2018, a five- judge constitutional bench of the Supreme Court, headed by the then Chief Justice, Dipak Misra, ruled that “S.377 of the Indian Penal Code (a draconian colonial law, which criminalized homosexual acts) to the extent that it criminalizes sexual acts, whether homosexual or heterosexual, between consenting adults, is unconstitutional” tying the knot on a twenty-year legal battle.
The patriarchal noose had slackened, proverbial closets slowly cracked open, both members and allies of the queer community rose up in jubilant exaltation. For some, the judgment signified the ‘victory of love’, which was hitherto ‘the love that dared not speak its name’, for others, it was the required reassurance to freely and fearlessly express themselves, and for the community, it was the beginning of the end of prejudice, as, the Apex Court of the country had upheld constitutional morality over majoritarianism.
The landmark judgement legitimized the existence of the queer community by acknowledging that every person, irrespective of their sexual orientation, is entitled to the constitutional right of equality and dignity. Reeling from the ecstasy of their historic victory, questions played at the back of everyone’s minds: “Would social acceptance flow from judicial recognition”? “Does this mean inclusion into ‘mainstream’ society and equal opportunity in the workplace and institutions”? “What really is the extent of liberation afforded by the verdict”? And the most important, “What’s next”?
Although the decision is of paramount significance, as it not only righted a long-upheld wrong but also threw light on the concerns of the queer community, the community as a whole has a long way to go before they attain true equality and acceptance; both of which would require societal transformation, which unfortunately, does not necessarily correspond with judicial reform. Ostracization, isolation, harassment, stigmatization, moral persecution, disrespect, religious and familial denunciation, discrimination in the workplace, institutions and in the access to public spaces and housing, financial insecurity, the subjection of forced ‘cures’ in the form of corrective rapes and conversion treatments, are still realities for a majority of people identifying as anything other than ‘man’ or ‘woman’, or coming out as anything other than heterosexual.
Since 2018, queer rights activists have been fighting legal battles in order to ensure that the queer community is afforded the same civil rights and liberties, constitutionally and statutorily granted to all persons, including the right to marriage, property, adoption, inheritance, surrogacy, and public employment. Recognizing that acceptance is a precursor for inclusion, the community has campaigned for greater representation in the media, politics, law-making and has taken the conversation of the right to self-determination, the spectrum-like nature of gender, and the right to sexual autonomy, from courtrooms to classrooms, boardrooms, the Parliament floors, and social media platforms.
This is done, with an intention to break the conventional binary conception of gender, to induce understanding about the multitudes of possible expressions of the identities of persons and to create inclusive work, educational and public spaces.
The challenges faced by the queer community in India, however, are often intersectional i.e, the degree of discrimination, persecution, and stigmatization faced by individuals within the community varies based on their socio-economic status, gender, caste, religion, disability, political leanings, geography, and gender expression. Some individuals tend to be, legally and socially, more disadvantaged than others, simply because of, who they are or what they identify as.
For example, a homosexual Brahmin man tends to have a greater probability of being employed, when compared to a homosexual Dalit woman, or a differently-abled, Dalit, trans person; a Muslim trans person may have a greater chance of being denied housing than a Hindu homosexual man. Since individuals within the community are disadvantaged at different degrees, blanket protections may only be partially beneficial, what is required, is identity specific legal protection- the transgender community being a testament.
The Transgender Persons (Protection of Rights) Act, 2019 was enacted, as there was a need felt for special protection to be afforded to the community. Due to the stigmatization of the community in addition to their stereotyped, inaccurate representation in the media, their access to employment, education, healthcare, and housing is curtailed, some, required to pay double the rent to obtain a housing facility.
Many trans persons are denounced by their families and turned out of homes in their youth, leaving them shelter-less, penniless, and disentitled to family property. They, then, tend to join the Hijra community to feel a sense of belonging and, engage in sex work to earn a livelihood. Members of the transgender community, are highly susceptible to sexual assault, rape, street violence, police harassment, prison violence, and custodial death.
The prevalence of the violence against the trans community is to such a degree that the National Crime Record Bureau, in December 2020 decided to create a separate category to record violence against transgender prisoners.
According to a 2018 report published by ‘The Humsafar Trust’, titled ‘Situation and Needs Assessment of Transgender People in Delhi, Mumbai and Bangalore’, 59% of persons within the trans community had experienced different forms of physical and sexual violence perpetrated either by family or relatives (22%) or by the common public ( 21%).
The Transgender Person (Protection of Rights) Act, 2019, while it intended to protect the transgender community, by preventing discrimination in the workplace, public spaces, access to education and healthcare, it is unanimously condemned by the transgender community for being both regressive and futile. It is considered to be toothless legislation which neither provides for an enforcement authority or remedial measures for survivors nor does it require any punitive action to be taken against the violators.The Act is a testament to the consequences of non-representation of the community within law-making bodies.
In the midst of the battle for civil liberties, a new crisis presented itself. The COVID-19 pandemic and the consequent national lockdown, presented the queer community with its own set of challenges. In addition to grappling with unemployment, economic insecurity, food insecurity, and the lack of private property, the community had to deal with queer negative environments. Members of the queer community often live dual lives with dual identities: one which conforms to conventional social standards, in order to obtain familial acceptance and the other, their true selves, expressed in the public sphere.
Relegated to their homes by the lockdown, members of the community had to either hide their sexualities and pretend to be something they were not, or succumb to their hostile home environments, where in order to avoid interaction with those unappreciative of their sexuality, they were induced to self-isolate. This led to causing a spike in mental health issues, including depression and complete erasure of one’s sense of identity and authentic reality.
The Hijra community whose primary sources of income include performing at weddings and public gatherings, begging and engaging in sex work, due to the social distancing requirements, found themselves out of jobs and penniless within the first month of the lockdown rendering them unable to afford rent and food. According to a global survey conducted on the impact of COVID-19 on the queer community, presented at the 23rd International AIDS Conference, 2020, 23% of the community were deemed food insecure and had admitted to eating less or skipping meals and starving themselves, unable to afford food. The state schemes of distributing food to the poor during the lockdown required the production of government approved ID cards.
Members of the Hijra community either do not possess such documentation or do not identify with the names and identities registered in these documents, disqualifying them from the benefit of such schemes.
For some, the judgment signified the ‘victory of love’, which was hitherto ‘the love that dared not speak its name’
The survey also revealed that, out of the 13% of the respondents who had been engaging in sex work as their source of income before COVID-19, only 2 % were continuing during the pandemic, either through online platforms or even physically, increasing the risk of contraction of COVID-19. The 1% of respondents admitted that they had begun to engage in sex work due to financial insecurity caused as a result of the lockdown.
In this issue, we explore the diversity within the queer community and dwell into the intricacies of the socio-economic challenges they faced as a result of the COVID-19 pandemic through the narratives and experiences of members of the queer community.
This time for Paigam-e-Awaaz, Q, an MPhil candidate at Trinity College Dublin, writes about caregiving within the LGBTQ+ community.
Nazariya examines the impact of the COVID-19 pandemic on the LGBTQ+ community and their relationship with the state and the law. Our conversation with Assistant Professor Gowthaman Ranganathan at JGLS and Sanjeev Gumpenapalli, a Dalit Queer Feminist and student at NALSAR University of Law, gave us insights on the various forms of violence the LGBTQ+ community faced during the lockdown imposed in India in March 2020.
For Awaaz in Focus, we speak with Mx. Ritwik Das, a non-binary trans social worker who has been an active member of the community. Das tells us about the experiences of the community based on the impact of the economic crisis induced by pandemic. They discuss the role of the NGOs and the government in the upliftment of the community.
The Vichaar section features a conversation with Srini Ramaswamy, the co-founder of the Pride Circle, where we discuss the economic hardships faced by the LGBTQ+ community due to their gender and sexual identity.
Lastly, TalkPoint sheds light on the lived experiences of the members of the queer community and challenges they faced as a result of the lockdown.